By: Attorney Max StephensonA prenuptial or postnuptial agreement can be a great way to protect your assets in the event of a divorce. These types of agreements serve as contracts between couples, and they will usually address how financial issues and other concerns related to a couple’s property will be handled if their marriage ends. A prenup or postnup can specify that certain assets are community property or separate property, and a couple can make decisions about how their property will be divided. Other issues can also be addressed in these agreements, such as whether one spouse will pay spousal support to the other.
While marital agreements can be very beneficial, ensuring that a couple can protect their financial interests and minimize conflict if they do choose to get divorced, a prenup or postnup may lead to additional complications during the divorce process if a couple disagrees about the terms of an agreement or if one spouse claims that an agreement is invalid. To avoid these issues, it is important to make sure a prenuptial or postnuptial agreement is valid and enforceable when it is created.
Issues Affecting Enforceability of Marital Agreements
Wisconsin law details several reasons why a prenup or postnup may be found to be unenforceable:
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Unconscionability – A prenuptial or postnuptial agreement may be found to be invalid if it is so one-sided that it is unfair to one spouse. This may be the case if, for example, one spouse waives all rights to property or spousal support without understanding the implications of doing so. Wisconsin law states that a marital agreement may be unenforceable if it was unconscionable at the time it was signed rather than because of any circumstances that arose after signing the agreement.
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Coercion or duress – A marital agreement may be found to be invalid if one spouse can prove that he or she did not voluntarily sign the agreement. For example, if a person waited until the day before their wedding to present their intended spouse with a prenup and stated that they would not get married unless the agreement was signed, this may be considered coercion, since the other party would not have the time to fully consider the terms of the agreement or consult with an attorney to be sure they understood what they were signing.
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Lack of disclosure – If a person did not receive a full, fair, and reasonable disclosure of their spouse’s income, assets, and financial obligations prior to signing a marital agreement, or if they did not otherwise have a reasonable notice or understanding of these financial issues, the agreement may be found be unenforceable. Without proper disclosure, a person may not fully understand the implications of an agreement or how it could put them at a disadvantage in the event of a divorce.
To ensure that a prenup or postnup will be enforceable, a couple will want to address these issues ahead of time. Couples should be sure to provide each other with a complete disclosure of their finances, detailing the income they earn, the assets they own, and any debts or other obligations that they are required to pay. They should also provide each other with enough time to consider an agreement, consult with an attorney, and negotiate terms that they can both agree on. With the help of a lawyer, a person can make sure the terms of the agreement benefit both spouses rather than unfairly favoring one party over the other.
Contact Our Milwaukee Marital Agreement Lawyers
If you are considering entering into a prenuptial or postnuptial agreement, it is important to have an experienced attorney on your side who can help you understand the implications of these agreements and ensure that your interests are protected. The Milwaukee, WI family law attorneys at Gimbel, Reilly, Guerin & Brown, LLP have assisted clients with a variety of marital agreements, and we can help you make sure your prenup or postnup will be valid and enforceable. To learn more, call us at 414-271-1440 to schedule a free consultation.
Sources:
https://docs.legis.wisconsin.gov/document/statutes/766.58
https://www.investopedia.com/personal-finance/postnuptial-agreements-more-couples-signing-them-are-they-enforceable/